NOXAL LIABILITY
Noxal surrender. If a slave or a son in potestate committed a delict the master or father was liable for the penalty, but could avoid it by making ‘noxal surrender’ of the wrongdoer to the injured person.
This, at least, was the way the classical lawyers expressed the law, but it in fact reverses the original order of ideas. The liability was that of the wrongdoer, and the injured person could take vengeance on him. But this produced a clash between the right of vengeance of the injured person and the potestas of the master or father, which was resolved by allowing the latter as it were to ‘buy off’ the injured person by paying the penalty. The true character of this noxal liability is plain from the rule that it followed the wrongdoer (noxa caput sequitur). This meant that if the slave was, for example, manumitted before the action was brought, he himself was liable to an ordinary action; or if he were sold, the noxal action lay against his new owner. It was even sufficient for the master to surrender the slave’s dead body, and one macabre text debates whether merely his hair and nails would suffice (probably for their magical significance as symbols of life and growth).Damage by animals. It is at first sight paradoxical to speak of the ‘liability’ of a slave since he was in law a thing, but the noxal liability of slaves and sons is only one aspect of what may be called ‘thing-liability’, which is commonly found in primitive law. The thing that did the act—the weapon, for example—is tainted and must be surrendered.1 Roman law, indeed, did not apply the principle to inanimate things, but it did recognize noxal surrender of animals. If an animal did damage, its owner could be required, by the actio de pauperie deriving from the Twelve Tables, either to compensate the injured person or noxally to surrender the animal. The efficacy of this remedy in the case of wild animals was marred by the principle that once they had escaped they had no owner, and the Aediles accordingly, in exercise of their jurisdiction over public ways, forbade the keeping of wild animals near such ways, and gave actions for any damage which resulted from disregard of this prohibition. In the late law there intrudes into the law of pauperies the curious principle that there is liability only if the animal acted in a way which was contrary to the nature of its species. It can be said therefore that just as a man must act as a reasonable man or be liable for any physical damage he causes, so also a horse must act, if the expression be permitted, as a reasonable horse. Wild animals are now altogether excluded, since it is in their nature to do damage.
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More on the topic NOXAL LIABILITY:
- Noxal liability
- 2. Liability for others in Roman law (apart from noxal liability)
- Noxal Liability
- Strict liability in disguise
- The liability of the mandatarius
- Contractual Liability
- 3. Liability for Others
- Liability for damage done by animals in modern German law
- 1. Vicarious liability
- Liability for omissions
- Cumulative liability
- Liability for eviction and latent defects
- The liability of the borrower
- Range of liability of the conductor
- Liability for damage caused by animals
- The Example of Delictual Liability for Others
- Liability for Helping
- The liability of the mandator
- The liability of the depositary